William & Mary Environmental Law and Policy Review
Volume 25 | Issue 1
Article 6
Winters in the East: Tribal Reserved Rights to
Water in Riparian States
Judith V. Royster
Repository Citation
Judith V. Royster, Winters in the East: Tribal Reserved Rights to Water in Riparian States, 25 Wm. &
Mary Envtl. L. & Pol'y Rev. 169 (2000), http://scholarship.law.wm.edu/wmelpr/vol25/iss1/6
Copyright c 2000 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/wmelpr
WINTERS IN THE EAST: TRIBAL RESERVED RIGHTS TO WATER
IN RIPARIAN STATES
JUDITH V. ROYSTER'
I. INTRODUCTION
In the eastern United States, the riparian system of state water rights
developed on the predicate of sufficient water to go around. Whatever the
truth of that predicate in the past, an adequate supply of water for all uses
may now be more myth than reality. Population pressures, industrial and
residential expansion, years of severe drought, and an increased
understanding of the necessity of preserving minimum instream flows have
all served to restrict the water available for riparian use at the same time as
demand for that water grows. Eastern states are responding to the potential
for water shortage in various ways, with one of the most common responses
being the adoption of some sort of permitting system for the assertion of
riparian rights.' In their attempts to address the issue of riparian water rights
in an era of limited water, however, eastern states have so far ignored one of
the most important issues in fashioning an integrated system of water
allocation: the rights of the Indian tribes to water as a matter of federal law.
With one partial exception,2 Indian reserved rights to water have been
litigated only for reservations located in states following the prior
appropriation system of state water law rights.3 Similarly, with one
"Professor of Law and Co-Director, Native American Law Center, University of Tulsa. Email: judith-royster@utulsa.edu. My thanks go to the editors and staff of the WILLIAM AND
MARY ENVIRONMENTAL LAW AND POLICY REVIEW for inviting me to participate in this
symposium.
I See A. DAN TARLOCK, LAW OF WATER RIGHTS AND RESOURCES § 3:90 (2000).
2 In Arizona v. California (Arizona I), 373 U.S. 546, 600 (1963), decree entered, 376 U.S.
340 (1964), the Court awarded reserved water rights to five Indian reservations, one of
which (Chemehuevi) is located in the dual-system state of California and two of which
(Colorado River and Fort Mohave) are located partially in California.
3 Prior appropriation is the water law system used in Alaska and all states west of and along
the 100th meridian, which runs from the Dakotas south through Texas. Robert E. Beck,
Prevalence and Definition, in 2 WATERS AND WATER RIGHTS § 12.01 (Robert E. Beck ed.,
1991).
Fifteen of these states use the prior appropriation system only, while three
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significant exception, tribal water rights settlements and compacts have been
concluded only in the context of appropriation states.4 With the exception of
the Seminole Tribe in Florida, no Indian tribe has ever filed suit in a riparian
jurisdiction asserting its federal reserved rights to water. In short, despite the
tightening of the eastern water supply, the issue of Indian water rights in
riparian states has barely surfaced for either tribal governments or state water
managers.
In consequence, tribes and states in the eastern United States are in
danger of repeating one of the major mistakes made in the West. With the
United States Supreme Court's 1908 decision in Winters v. United States,'
western states were aware, or at least surely should have been aware,' that
reservations of land for Indian tribes carried with them implied rights to water
that could and usually did predate most non-Indian water rights. Yet those
states generally ignored the teaching of Winters, acting with respect to the
allocation of water to non-Indians as if the Court had never spoken. Little
existed to nudge the states into taking account of tribal rights. The federal
government, the nominal trustee for Indian lands and water rights, seldom
pursued Indian water rights,7 either in litigation or on the ground. The tribes
themselves, struggling for their survival against devastating federal policies,'
(California, Nebraska, and Oklahoma) employ a dual system incorporating both
appropriative and riparian rights. Id. (1991 & 1999 cum. supp.).
4 See infra text accompanying notes 137 to 142 (discussing
the Seminole Water Rights
Compact).
207 U.S. 564 (1908).
6 See Michael C. Blumm, Reserved Water Rights, in 4 WATERS AND WATER RIGHTS
5
§
37.01(b)(2) (Robert E. Beck ed. 1991) (citing J.L. Shurts, The Winters Doctrine: Origin and
Development of the IndianReserved Water Rights Doctrine in Its Social and Legal Context,
1880s-1930s (Ph.D. Dissertation, Univ. of Oregon, 1997) for the thesis that tribal water
rights "were not a forgotten element of Western water law.").
7Following passage of the Reclamation Act of 1902, 43 U.S.C. § 372 et seq.,
federal monies
poured into reclamation projects for the benefit of non-Indian lands. See Blumm, supra note
6, § 41.02 (1996) (noting that the Bureau of Reclamation "built over 600 dams with over
50,000 miles of main and lateral canals to deliver water to almost 10 million acres and over
30 million people in the western United States."). By contrast, virtually no funds were
available for projects benefiting or protecting Indian lands. See NATIONAL WATER
COMMISSION, WATER POLICIES FOR THE FuTURE: FINAL REPORT 474-75
(1973);
LLOYD
BURTON, AMERICAN INDIAN WATER RIGHTS AND THE LIMITS OF LAW 21-23 (1991). Had
the federal government made a reasonable effort to bring water to Indian lands
commensurate with its efforts to reclaim non-Indian lands, tribes would have had access to
"wet" water rather than paper rights decades ago.
8 'Me Winters case was decided in the middle of the allotment and assimilation era of federal
Indian policy, when United States law and policy were devoted to the break-up of the tribes,
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
had neither the resources nor, often, the legal right to pursue their water
claims in federal court.9
Not until the 1970s did Indian tribes in western states began asserting
their rights to water in substantial numbers. By that time, state law allocation
systems were well-established and long-standing. Non-Indian rights to water,
property rights under state law, had often been vested for decades, and nonIndians had made significant investments of time and money in the
expectation that their state appropriation rights were secure."0 The
introduction of tribal water rights upset those expectations. Tribes asserted,
and won, rights to considerable quantities of water with very early priority
dates, raising the very real possibility that some established state law rights
would be curtailed." Not surprisingly, the resulting hostility from non-Indian
water users and state officials has often been intense.2
the imposition of private property, the assimilation of Indians into the majoritarian society,
and the replacement of tribal law with federal law and administrative regulations. See
generally SIDNEY L. HARRING, CROW DOG'S CASE: AMERICAN INDIAN SOVEREIGNTY,
TRIBAL LAW, AND UNITED STATES LAW IN THE NINETEENTH CENTURY (1994); Judith V.
Royster, The Legacy of Allotment, 27 ARIz. ST. L.J. 1 (1995). The federal government
supported the Winters decision as a means of promoting the break-up of reservation lands
into irrigable allotments. See Blumm, supra note 6, § 37.01(b)(2) (citing Shurts, supra note
6).
Although the Indian Reorganization Act of 1934, 48 Stat. 984, codified at 25 U.S.C.
§§ 461-479, ushered in a brief era of federal encouragement of traditional tribal culture and
government, by the 1940s federal Indian policy turned once again to assimilation,
accomplished this time through the "termination" of the federal-tribal relationship and the
imposition of state law within Indian reservations. Not until the mid- to late-1960s did the
United States enter into a sustained period of promoting tribal governmental independence
and control over reservation matters. The historical shifts of federal Indian policy are
explored in ROBERT N. CLINTON, ET AL., AMERICAN INDIAN LAW: CASES AND MATERIALS
137-164 (Michie Co., 3d ed. 1991); WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW INA
NUTSHELL 10-32 (West Publishing Co., 3d ed. 1998).
9 Indian tribes did not have the right to pursue federal question cases in federal district court
on their own behalf until 1966. Pub. L. No. 89-635, § 1, 80 Stat. 880 (1966) (codified at 28
U.S.C. § 1362).
10 Certainty is one of the hallmarks of the western system of prior appropriation.
As
designed, the appropriation system rests on a rank order of priority dates and a clear
quantification of the amount of water each appropriator is entitled to. See infra Part III.
11 See WESTERN
WATER POLICY REVIEW ADVISORY COMMISSION, FINAL REPORT-WATER
INTHE WEST: CHALLENGES FOR THE NEXT CENTURY 5-3 (1998), at http://www.den.doi.gov/
wwprac/reportsffinal.htm (last visited October 27, 2000). See also, e.g., Arizona I, 373 U.S.
546, 596, 600-01 (1963) (affirming the Special Master's decision to award five Indian tribes
about one million acre feet of water based on about 135,000 irrigable acres of land); Susan
Williams, Indian Winters Water Rights Administration:Averting New War, 11 PUBLIC LAND
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[Vol.25:169
It may already be too late to avoid the same sort of disruption and
hostility in the eastern states. But it is certain that the longer it takes for the
Indian tribes and the riparian states to recognize tribal reserved rights to water
in the East and to accommodate those rights in the context of riparian
systems, the more difficult the transition will be. The issue of tribal rights to
water in eastern states will surface at some point. If tribes and states can start
to address the issue now, perhaps much of the litigation and acrimony that
have plagued Indian water rights in the West can be avoided.
This article examines the question of tribal reserved rights to water in
riparian jurisdictions. 3 It begins by describing the fundamental principles of
the tribal reserved rights doctrine, principles that transcend the specifics of
the state law systems with which the reserved rights must be coordinated.
Next, the article looks at how those fundamental principles of Indian reserved
rights have been put into practice in prior appropriation states: that is, how
those principles have been interpreted within the context of intertwining both
reserved rights and appropriation rights into a workable whole. The third
section of the article moves to the East, briefly delineating the basic
differences between appropriation rights and riparian rights. This section
also compares common law riparian rights to the rise of regulated riparian
rights in many of the eastern states. Finally, the article considers Indian
reserved rights in riparian jurisdictions. This involves both the basic question
of whether tribal reserved rights to water exist outside appropriation states,
as well as an exploration of some of the issues raised by trying to coordinate
the principles of Indian reserved rights and the state law system of riparian
rights. The article concludes that tribal reserved rights to water are as viable
in the eastern United States as in the West, but that implementing those rights
in the context of riparianism may involve some distinctions in the specific
rules that govern the reserved rights doctrine in the West.
L. REv. 53, 54 (1990) (noting that the Wyoming Supreme Court affirmed an award of
189,000 acre feet to the Shoshone and Arapaho Tribes of the Wind River Reservation).
12 See Reid Peyton Chambers and John E. Echohawk, Implementing the Winters Doctrine
of Indian Reserved Rights: ProducingIndian Water and Economic Development without
InjuringNon-Indian Water Users?, 27 GONZ. L. REv. 447, 448 (1991-92); Williams, supra
note 12, at 53, 75, 76-77.
13 One article has addressed issues involved in the application of reserved rights in riparian
jurisdictions, but it focused primarily on federal reserved water rights for lands set aside for
federal use such as national parks, national forests, and national monuments. Anita Porte
Robb, Applying the Reserved Rights Doctrine in Riparian States, 14 N.C. CENT. L.J. 98
(1983). Ms. Robb did not purport to address the special issues involved in applying the
tribal reserved water rights doctrine in riparian states.
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
173
II. FUNDAMENTALS OF THE RESERVED RIGHTS DOCTRINE
The doctrine of Indian reserved rights to water has developed against
the backdrop of the state prior appropriation system with which tribal rights
must be integrated in western states. With one partial exception, tribal water
rights have been litigated only in appropriation states, and all water rights
settlements except the Seminole Compact have occurred in western states as
well. As a result, the leading treatise in the field asserts that tribal water
rights "cannot be understood apart from the prior appropriation system."' 4
Nonetheless, there is a distinction between the fundamental principles
of the Indian reserved rights doctrine, which transcend the state law water
rights systems, and the specifics of how Indian water rights are to be
coordinated with state law water rights in the same body of water. The
fundamental principles arise from the federal policies and purposes in
creating reservations, the tribes' preservation of certain crucial and often
expressly bargained-for aboriginal practices, and the federal trust
responsibility to the Indian tribes. The specifics, on the other hand, arise
from the practical necessity of creating a workable integrated system of
federal and state-law water rights.
The fundamental principles of the Indian reserved rights doctrine are
few and fairly easily stated."5 For the most part, these foundation principles
are embedded in the two early twentieth century Supreme Court cases
addressing the concepts of reserved rights to resources: United States v.
Winans' 6 in 1905 and Winters v. United States 7 three years later.
14
FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 576 (Rennard
Strickland et al.,
eds., 1982) [hereinafter COHEN'S HANDBOOK]. It is certainly true that the implementation
of tribal reserved rights, which to date has taken place almost exclusively in western states,
can be understood only in conjunction with the prior appropriation system.
15This article, as the first discussion of Indian reserved rights in riparian jurisdictions, is
confined to a consideration of the rights reserved to and by the tribes themselves. Issues
involved in the use of water on allotments and former allotments now in fee are left to a
future exploration. Nonetheless, the same general approach that this article advocates for
tribal water rights has merit as applied to allotment water rights: that is, that there are certain
fundamental principles that should apply regardless of the state law system, but that the
implementation details as developed within the context of prior appropriation may require
some modification in the context of riparianism.
"6198 U.S. 371 (1905).
17 207 U.S. 564 (1908).
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[Vol.25:169
A. Waterfor Reservation Purposes
The first fundamental principle of tribal reserved water rights is that
when Indian country 8 is established, 9 that act implicitly reserves for the use
of the tribe that amount of water which is needed to fulfill the purposes for
which the land was set aside.2" These Winters rights exist as of the date of the
creation of the Indian country.
The basis of this principle is simple: neither the tribes nor the federal
government would have intended to settle Indian societies on confined tracts
of land-too small to support the largely nomadic hunting way of life
18 Indian country is defined both by common law and by statute. The statutory definition
is found at 18 U.S.C. § 1151:
(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation, (b) all dependent Indian communities ... and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.
The Court has concluded that the statutory categories are not to be interpreted
narrowly, but rather in light of the pre-existing common law definition of Indian country as
lands set aside for the use of Indians under the superintendence of the federal government.
Thus, reading the statute against the backdrop of the common law, the Court held that an
"informal" reservation-tribal land held in trust by the United States, but not part of a
formally declared Indian reservation-was Indian country. Oklahoma Tax Comm'n v. Sac
and Fox Nation, 508 U.S. 114, 123, 128 (1993).
Because of the definition of Indian country as land under the superintendence of the
United States, those tribes that are not "recognized" by the federal government do not have
Indian country as a matter of federal law. Thus, state-recognized tribes such as the
Mattaponi Tribe of Virginia cannot have reserved rights to water as a matter of federal law.
However, where the state acts in the capacity of trustee for state-recognized tribes, in much
the same manner as the federal government acts as trustee for federally recognized tribes,
there is no reason that state-recognized tribes would not have reserved rights to water as a
matter of state law.
19 Reservations may be set aside by treaty, by statute (which often served to ratify a tribalfederal agreement), or by executive order. Prior to 1871, treaties were the primary method
of creating reservations. In 1871, however, Congress ended treaty-making with the Indian
tribes, 25 U.S.C. § 71, although it continued to ratify negotiated agreements. See COHEN'S
HANDBOOK, supra note 14, at 127. Executive order reservations were created between 1855
and 1919. Id. at 127-28. All tribal reservations carry the same water rights regardless of
how the reservation was created. See, e.g., Arizona I, 373 U.S. 546, 598 (1963) (executive
order reservations); Winters, 207 U.S. at 571 (reservation created by statute ratifying
agreement with tribes).
20 See Winters, 207 U.S. at 576-77; Arizona I, 373 U.S. at 600.
21 See Arizona I, 373 U.S. at 600; see also Winters, 207 U.S. at 577.
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
practiced by most tribes-without providing sufficient water to sustain the
communities in their new life.' The proposition is so fundamental that it is
implicit in the reservation of the land itself. No statement of an intent to
reserve water is necessary; in fact, an express disclaimer of water rights
would probably be required to defeat the reservation of water that
accompanies the reservation of land.3
There has been considerable litigation in western states regarding the
purposes for which reservations were established.24 Every court that has
decided the issue has agreed on one purpose for all reservations: the creation
of an agrarian and settled society.' The federal reservation policy was
designed both to separate potentially hostile tribes and settlers, and to provide
a laboratory setting where the tribes could learn the virtues of civilization,
including agriculture, English, Christianity, and private property. 6 Based on
this generalized but clear intent on the part of the government that Indian
reservations were created in part to "agrarianize" tribal communities,
agriculture is universally recognized as a purpose for which reservations were
set aside.
Beyond agriculture, there is far less judicial agreement on the
purposes of Indian reservations. Some cQurts broadly interpret the federal
purposes in creating reservations, finding an intent to create not merely an
agrarian society, but a homeland" where the tribes are guaranteed a
22 See
Winters, 207 U.S. at 576.
23 This proposition
derives in part from application of the canons of construction for Indian
treaties and agreements. The canons provide that treaties and agreements should be liberally
construed in favor of the tribes, that ambiguities should be resolved in favor of the tribes,
and that the documents should be interpreted as the Indians would have understood them.
See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196, 200
(1999); see generally COHEN'S HANDBOOK, supra note 14, at 222. Thus, in Winters for
example, the Court found that the tribes would not have agreed to settle on a reservation too
small to support their prior nomadic life while agreeing to give up the water that would
render the territory remaining to them capable of supporting the tribal community. 207 U.S.
at 576.
24
See generally Blumm, supra note 6, § 37.02(c) (1996); Judith V. Royster, A Primeron
Indian Water Rights: More Questions Than Answers, 30 TULSA L.J. 61, 71-74 (1994).
25 See, e.g., Winters v. United States, 207 U.S. at 576; Arizona 1,373 U.S. at 600.
26
See 1 FRANCIS PAUL PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT
317 (1984).
Colville Confederated Tribes v. Walton, 647 F.2d 42, 47, 49 (9th Cir.), cert. denied, 454
AND THE AMERICAN INDIANS
27
U.S. 1092 (1981). Encompassed within that general purpose, the court ruled, were the
primary purposes of both agriculture and fisheries preservation. Id. at 47-48.
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[V01.25:169
"measured separatism""8 from the majoritarian society. Other courts reject
the homeland concept, finding that the sole purpose for a reservation is
agricultural.29 Where agriculture is deemed the sole purpose of a reservation,
however, the courts have conceded that water for domestic and other uses is
encompassed within the agricultural purpose,3" implicitly recognizing that
reservations exist not merely to provide fields and pastures, but also to
provide a place for tribal communities to live.
Regardless of the particular court's approach to interpreting the
purposes of a given reservation, the general principle that sufficient water is
reserved to fulfill those purposes remains undisturbed. The judicial
disagreements arise over the construction of the purposes, and not the basic
concept that water is impliedly reserved for those purposes.
B. Waterfor AboriginalPractices
The second fundamental principle is that when Indian tribes reserve
for themselves the right to continue pre-existing or aboriginal practices such
as fishing, hunting, gathering, and historical agriculture, whether inside their
Indian country or off-reservation, that act implicitly reserves as well
sufficient water to support that tribally reserved activity."' These rights exist
as of time immemorial.32
The basic idea of the second principle is as simple as that of the first
principle: tribes would not have bargained to continue pre-existing or
aboriginal food practices without an understanding that the water necessary
to allow those practices would be available.33 Tribes would not, for example,
have ensured their perpetual right to fish at their usual and accustomed
fishing grounds if they believed that non-Indians could de-water the rivers.
28
CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW: NATIVE SOCIETIES
IN A MODERN CONSTITUTIONAL DEMOCRACY 16 (1987).
29
Inre General Adjudication of All Rights to Use Water in the Big Horn River System (Big
Horn I), 753 P.2d 76, 97 (Wyo. 1988), aff'd by an equally divided Court sub nom.
Wyoming v. United States, 492 U.S. 406 (1989).
30 Id. at 99 (water for livestock, municipal, domestic, and commercial uses "subsumed"
within the agricultural purpose).
31 United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983), cert. denied, 467 U.S. 1252
(1984).
32 Id.; see also State ex rel. Greely v. Confederated Salish & Kootenai Tribes, 712 P.2d 754,
764 (Mont. 1985).
33 See Adair, 723 F.2d at 1414.
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
These aboriginal-practice rights differ from rights reserved, by
implication of a land reservation in their date of creation.34 When land was
set aside for Indian tribes, sufficient water was impliedly reserved to fulfill
the purposes for which the federal government created the reservation.35
Because those federal purposes came into existence at the creation of the
land-reservation, so too did the water rights. 36 But when tribes reserved the
right to continue aboriginal practices, and impliedly reserved as well
sufficient water, the purpose for which the water was reserved was not
created with the land-reservation, but rather was a pre-existing practice of the
particular tribe. The water rights that accompany aboriginal practices thus
exist, as does the practice that the water is supporting, as of time
immemorial."
There is some disagreement about whether these aboriginal-practice
water rights are more directly traceable to the 1908 Winters decision,38 which
held that water rights implicitly accompany the reservation of land,39 or to the
1905 Winans case,40 which held that the reservation of aboriginal practices
implicitly reserves as well those rights necessary to the accomplishment of
They differ in other ways as well, including in the measure of how the water rights are
quantified in appropriation states. See infra section III.B.
The two types of rights also arguably differ in who reserved the water. When Indian
tribes reserved the right to continue existing practices, it should be clear that the tribes
themselves impliedly reserved the water as well. See United States v. Winans, 198 U.S. 371,
381 (1905) (holding that treaties are "not a grant of rights to the Indians, but a grant of rights
from them-a reservation of those not granted."). It is not clear, however, whether the tribes
or the United States (or both, as mutual parties to the agreements) reserved the water at the
time the Indian reservations were set aside. There is language in the 1908 Winters decision
supporting both views. See 207 U.S. 564, 576-77. Most modem courts appear to believe
that the rights were reserved for the Indians by the federal government. See Arizona I, 373
U.S. at 600 (stating that the U.S. "did reserve the water rights for the Indians" when the
reservations were created). Resolution of the issue may ultimately be irrelevant because the
water rights are either federally created or federally protected and guaranteed. In either case,
tribal reserved rights to water are questions of federal law. See Arizona v. San Carlos
Apache Tribe of Arizona, 463 U.S. 545, 671 (1983) (noting that both state and federal courts
"have a solemn obligation to follow federal law" in adjudicating tribal water rights).
35 See Winters v. United States, 207 U.S. at 576.
36
See United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983).
37 Id. ("Such water rights necessarily carry a priority date of time immemorial. The rights
were not created by the 1864 Treaty, rather, the treaty confirmed the continued existence of
these rights.").
38 207 U.S. 564 (1908).
39
See id. at 576.
40 198 U.S. 371 (1905).
34
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the practices.4 Professor Michael Blumm, in the leading water law treatise,
advocates the second position,42 and finds some substantial support in the
Ninth Circuit's Adair decision.43 Other Ninth Circuit opinions, however,
have seemed to assume that a continuation of aboriginal practices is one
purpose for which some reservations were created, an approach more
consistent with the Winters decision." Regardless of the precise basis of
aboriginal-practice water rights, however, a tribal reservation of the right to
continue pre-existing practices implicitly reserves sufficient water to ensure
that the practices in fact continue.
Nonetheless, and in direct contradiction to the Adair decision,45 the
Idaho state judge in charge of the Snake River Basin Adjudication (SRBA)"
See id. at 381. Winans was not a water rights case, but an interpretation of the treaty right
to fish at off-reservation locations "in common with" non-Indians. Id. Non-Indian property
owners claimed that the Indians had no right to trespass on private property to reach and use
their fishing locations, but the Court held that the reserved right to continue the aboriginal
practice of fishing "imposed a servitude upon every piece of land" subject to the tribal rights.
Id. Although the servitude was implied from the express reservation of the fishing right, the
Court determined that the implied right was necessary "to give effect to the treaty." Id.
42 Blumrn, supra note 6, § 37.02(a)(2). Although I have questioned this position in the past,
see Royster, supra note 24, at 63 n.5, I am increasingly persuaded of its value.
43 723 F.2d at 1413-14 (relying on Winans to find that the Klamath treaty of 1864
recognized the tribe's "aboriginal water rights").
44 See Colville Confederated .Tibes v. Walton, 647 F.2d 42, 47-49 (9th Cir. 1981), cert.
denied,454 U.S. 1092 (1981) (discussing the continuation of aboriginal practices as one of
several reasons for the creation of reservations). See also In re Determination of the Rights
to the Use of the Surface Waters of the Yakima River Drainage Basin, 850 P.2d 1306, 131617 (Wash. 1993) (en banc) (noting that water for fishing rights would be reserved "if fishing
was a primary purpose of the reservation").
45 In Adair, the federal court ruled that the Klamath Tribe held reserved water rights to
support its treaty reserved right to fish, even though the land-reservation on which those
rights had existed had been terminated. 723 F.2d at 1411-14. The court thus necessarily
determined that the tribe's aboriginal-practices water right existed independently of any land
reservation and that those water rights continued even though they were now off-reservation
rights.
46 764 P.2d 78 (Idaho 1988). Despite the federal nature of tribal reserved rights to water,
those rights may be adjudicated in state court as part of a general stream adjudication to
determine all rights in a given stream system. Congress authorized the joinder of the federal
government in the McCarran Amendment of 1952,43 U.S.C. § 666, and the Supreme Court
subsequently interpreted the legislation to permit state adjudication of tribal reserved rights
to water. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
Although the McCarran Amendment does not waive tribal sovereign immunity and thus
tribes cannot be made parties to state general stream adjudication without their consent, the
federal government, as trustee for tribal property rights, can be joined to represent tribal
41
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
179
recently ruled that the Nez Perce Tribe did not hold any water rights in
connection with its treaty-reserved rights to fish outside its reservation
borders.47 Improperly distinguishing between on-reservation and offreservation pre-existing uses of water, the court refused to extend the
implied-reservation-of-water doctrine to aboriginal practices reserved in
aboriginal territory not made part of any reservation.48
C. ParamountNature of Tribal Reserved Rights
The third fundamental principle of Indian water rights is that tribal
reserved rights to water are, as a matter of federal law, protected against
interference by subsequent non-Indian uses of water.49 This principle is
simply necessary to give effect to the first two.
First, the federal government has the constitutional power to set aside
water for tribal use. This power arises primarily from the federal commerce
power, which authorizes Congress to act both with respect to the waters and
interests. See Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 566 n. 17 (1983) (stating
that "the McCarran Amendment did not waive the sovereign immunity of Indians as parties
to state comprehensive water adjudications," but that "any judgment against the United
States, as trustee for the Indians, would ordinarily be binding on the Indians."). State courts
adjudicating tribal reserved rights are obligated to apply federal law to the determination of
those rights, see id. at 571, although some state court judges have declared their belief that
state law should govern the exercise of tribal reserved rights. See, e.g., In re General
Adjudication of All Rights to Use Water in the Big Horn River System, 835 P.2d 273, 278
(Wyo. 1992) (holding that tribes must comply with state law to change the use of their
reserved water rights), 284 (Thomas, J., concurring) (stating that tribal water rights should
be administered by the State Engineer).
47 In re SRBA, No. 39576, Subcase No. 03-10022 (Idaho Dist. Ct., Nov. 10, 1999).
48 See generally Michael C. Blumm, et al., Judicial Termination of Treaty Water Rights: The
Snake River Case, 36 IDAHO L. REV. 449 (2000) (providing a fuller explanation of this and
other criticisms of the SRBA court's decision).
The Tribe asked that the judgment be vacated and the issues determined in federal
court on the ground that the SRBA judge failed to disclose, and the Tribe did not discover
until after the judgment issued, that the judge and his family have direct interests in the
SRBA litigation that are adverse to the interests of the Nez Perce. The judge, however,
refused to vacate his decision on the ground that his and his family's claims were too
"inconsequential" to support any finding of a conflict of interest sufficient for
disqualification. In re SRBA, No. 39576, Subcase No. 03-10022 at 37 (Mar. 23, 2000).
49
See, e.g., Winters v. United States, 207 U.S. at 576-77.
180
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the Indian tribes, supplemented by the property clause.5" Under the interstate
commerce clause,"' Congress retains authority over the navigable waters52
even when the beds of those waters pass to the states upon their admission to
the Union.53 Moreover, the Indian commerce clause accords full authority
over Indian affairs to the federal government, 4 limiting state power over
Indians, Indian lands, and Indian tribes to those situations where Congress
has authorized the states to act or a state can show "exceptional
circumstances" that mandate state action. 5 In instances where Indian
See Arizona I, 373 U.S. 546, 597-98 (1963); see also Cappaert v. United States, 426 U.S.
128, 138 (1976). See generally Amy K. Kelley, ConstitutionalFoundationsof Federal
Water Law, in 4 WATERS AND WATER RIGHTS § 35.02-.03 (Robert E. Beck ed., 1991).
S'U.S. CONST. art. I, § 8, cl. 3 ("The Congress shall have Power... to regulate Commerce
...among the several States ....).
52 See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see generally Kelley,
supra
note 50, § 35.02.
53 In federal territories, the federal government holds the lands submerged beneath navigable
waters in trust for future states. See Shively v. Bowlby, 152 U.S. 1, 57 (1894). Once states
are admitted to the Union, the "equal footing" doctrine generally provides that ownership
of the bedlands passes to the state, see Montana v. United States, 450 U.S. 544, 551 (1981),
although, as noted, the federal government retains its constitutional powers over those
waters, Arizona I, 373 U.S. at 597-98. Indian tribes have frequently asserted title to
bedlands in Indian country pursuant to their treaties, although tribal success in bedlands
claims has been mixed. Compare Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970)
(holding the Choctaw Nation owns the bed of the Arkansas River pursuant to treaty) with
Montana, 450 U.S. at 553-57 (holding the Crow treaties did not overcome the presumption
in favor of state bedlands ownership).
54 U.S. Const. art. I, § 8, cl. 3 ("The Congress shall have Power... to regulate Commerce
...with the Indian tribes ...."). In one of the foundation cases of federal Indian law, Chief
Justice John Marshall declared that relations between the Indian nations and the United
States vested in the federal government, not the states. Worcester v. Georgia, 31 U.S. (6
Pet.) 515, 561 (1832).
The exclusive federal power recognized in Worcester was subsequently expanded
into "plenary" power over the Indian tribes themselves. See generally Nell Jessup Newton,
FederalPower Over Indians:Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195
(1984). Although the Supreme Court initially rejected the Indian commerce clause as the
source of congressional authority to legislate for Indian tribes see United States v. Kagama,
118 U.S. 375, 378-79 (1886), by the late twentieth century the Court grounded federal power
over tribes firmly in that clause. See, e.g., McClanahan v. Ariz. State Tax Comm'n, 411
U.S. 164, 172 n.7 (1973) (citing the Indian commerce clause as the source of federal power
over "Indian matters").
SS See Worcester, 31 U.S. (6 Pet.) at 561 (state law "can have no force" in Indian country
unless "in conformity with treaties, and with the acts of congress"); California v. Cabazon
Band of Mission Indians, 480 U.S. 202, 207 (1987) ("[S]tate laws may be applied to tribal
Indians on their reservations if Congress has expressly so provided."). The "exceptional
2000]
TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
reservations are created from the public domain, the federal power to regulate
those lands pursuant to the property clause also supports the implied
reservation of water rights.56
Second, the rights reserved to or by tribes were reserved in perpetuity.
Reservations were set aside as permanent homelands for the tribes, offering
the protection of a "measured separatism" from the surrounding American
culture." Only Congress can create an Indian reservation, and only Congress
can diminish or disestablish an Indian reservation. 8 The purpose-ofreservation water rights that attach to an Indian reservation thus exist unless
circumstances" exception to the lack of state power arises from the Court's grant of authority
to states to regulate Indian treaty fishing rights for the limited purpose of preserving the
species. See Puyallup Tribe, Inc. v. Washington Game Dep't, 433 U.S. 165, 176-77 (1977).
But see New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331-32 & n. 15 (1983). To
date, that is the only circumstance inwhich the Court has permitted states to regulate Indians
and Indian property rights within Indian country without express congressional
authorization.
5
6Professor Joseph Dellapenna argues that no tribal reserved rights to water can exist in the
original thirteen states because those states never contained federal public lands. See Joseph
W.
Dellapenna, Regulated Riparianism, in 1 WATERS AND.WATER
RIGHTS
§ 9.06(b)(2)
(Robert E. Beck ed., 1991). But the authority to reserve water, or protect tribal reserved
water rights, does not depend upon the public status of the lands prior to their reservation.
See Blumm, supra note 6, § 37.01(c)(2) ("Reserved water rights are the product of a
preemptive federal intent to use water for federal purposes, not a consequence of federal
ownership of water as proprietor of the public domain."). Although no federal public lands
may have existed in the original states, Indian country most certainly did (and does). The
foundation cases of federal Indian law, for example, established the "domestic dependent
sovereign" status of the Cherokee Nation, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1,
17 (1831), in which the laws of Georgia (an original state) "can have no force." Worcester
v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832). Numerous federally recognized Indian tribes
continue today to govern their Indian country in the original thirteen states. See 65 Fed.
Reg. 13,298 (Mar. 13, 2000) (listing federally recognized Indian tribes, including, inter alia,
the Cayuga, Oneida, and Seneca Nations of New York). It is the creation and existence of
this Indian country that gives rise to new-use reserved water rights and confirm aboriginalpractice reserved water rights.
57 WILKINSON, supra note 28,
at 16.
58 See, e.g., Alaska v. Native Village of Venetie Tribal Government,
522 U.S. 520, 530-31
(1998) (holding that creation of Indian country requires land to be set aside by Congress
under federal superintendence); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 330
(1998) (asserting that reservation diminishment is a matter of congressional intent).
From 1855, when the practice began, to 1919, Indian country could be created and
terminated by executive order. See COHEN'S HANDBOOK,supra'note 14, at 493. Although
congressional acquiescence supported the presidential practice, Congress declared in 1919
that thereafter only it could establish Indian country. Act of June 30, 1919, ch. 4, § 27, 41
Stat. 34 (codified at 43 U.S.C. § 150).
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and until Congress chooses to terminate the land reservation. Similarly,
existing uses reserved in treaties and agreements were generally reserved
forever.5 9 Only Congress can abrogate treaties and agreements with the
Indian tribes and extinguish the pre-existing tribal uses that those documents
reserved to the tribes.' Moreover, although Congress has the power to
terminate reservations and abrogate treaties, congressional intent to do so
must be clearly expressed.6
It follows, then, as a matter of federal Indian law, that until or unless
Congress acts unmistakably to extinguish tribal water rights, those rights
persist. It also follows that, as a matter of basic federalism, nothing in state
law can operate to the derogation of those federal-law tribal rights. Tribal
water rights are, therefore, paramount over subsequent state-law water
rights.62
59 In some cases, the rights were reserved until the occurrence of a specified event. For
example, several of the Chippewa bands of the western Great Lakes reserved hunting,
fishing, and gathering rights "during the pleasure of the President." See Minnesota v. Mille
Lacs Band of Chippewa Indians, 526 U.S. 172, 177 (1999) (quoting 1837 Treaty with the
Chippewa, 7 Stat. 537). Although that treaty language gives the President of the United
States the authority to terminate the usufructuary rights, the rights survive until such time
as the President may act. See id. at 194-95.
60 See Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903) (discussing Congress' "power to
abrogate" treaties with the Indian tribes).
61 See, e.g., Yankton Sioux Tribe, 522 U.S. at 330 (stating congressional intent for
reservation diminishment "must be 'clear and plain"') (quoting United States v. Dion, 476
U.S. 734, 738-39 (1986)); Mille Lacs, 526 U.S. at 202 ("A congressional determination to
terminate [a treaty with the Indians] must be expressed on the face of the Act or be clear
from the surrounding circumstances .... ."); United States v. Dion, 476 U.S. 734, 739-40
(1986) ("clear and plain" intention from Congress is required "to abrogate Indian treaty
rights."); Washington v. Wash. State Com. Passenger Fishing Vessel Ass'n, 443 U.S. 658,
690 (1979) (requiring "explicit statutory language" for "abrogation of [Indian] treaty
rights."); Mattz v. Amett, 412 U.S. 481, 505 (1973) (declining to infer an intent to terminate
a reservation in the absence of clear statutory language); Menominee Tribe v. United States,
391 U.S. 404, 413 (1968) (holding that a treaty with the Menominee Tribe was not
abrogated because there was no "explicit statement" from Congress).
62
At the same time, reserved water rights cannot interfere with prior state-law water rights.
The water available for reserved rights does not include that water which is already in use
pursuant to state law at the time the reserved rights came into existence. See Blumm, supra
note 6, § 37.02(d); Royster, supra note 24, at 67. For time-immemorial rights, of course, by
definition, no other rights existed prior to them. For water rights that came into existence
when a land reservation was created, however, there may be some state-law water rights that
pre-date its creation; those state-law rights would be protected against interference by the
exercise of tribal reserved rights to water.
2000]
TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
D. Tribal Rights Survive Non-use
The fourth fundamental principle is that tribal reserved rights to water
are not forfeited or abandoned by non-use. 3 The necessity for this principle
arises in part from the conditions of most Indian reservations in the decades
after they were created. Tribes themselves were struggling to maintain their
cultural and political integrity in the face of federal policies geared toward
assimilation of Indians and the eventual disintegration of the tribes." No
tribal funds existed for water projects, and federal money primarily funded
non-Indian irrigation projects, often to the detriment of Indian lands.6" If
tribal water rights were dependent upon putting the reserved water to use
within a given period of time, those rights would have had little meaning.
Ill.
IMPLEMENTING TRIBAL RESERVED RIGHTS IN APPROPRIATION STATES
Congress, federal and state courts, state water agencies, and Indian
tribes themselves have addressed the issues surrounding tribal water rights
almost exclusively against the backdrop of the prior appropriation system of
western state water law. The Supreme Court has succinctly described the
basic attributes of the prior appropriation system:
Under that doctrine, one acquires a right to water by diverting
it from its natural source and applying it to some beneficial
use. Continued beneficial use of the water is required in order
to maintain the right. In periods of shortage, priority among
confirmed rights is determined according to the date of initial
diversion.'
63 This principle is implicit in the Court's decision in Winters, 207 U.S. 564. Although the
federal government did not begin an irrigation project for reservation lands until a decade
after the reservation was established, id. at 566, the time at which actual use of the water
began was considered irrelevant. The tribal reserved right comes into existence at the
creation of the reservation or at time-immemorial, depending upon the type of water right
reserved, and the right continues unless and until it is terminated by Congress.
64 See supra note 8 and accompanying text.
63
See supranote
6-8 and accompanying text.
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 805 (1976). There
is some variation in specific detail among the various western states, but the Court's
statement captures the basic doctrine.
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Because the prior-appropriation system developed in arid climates where
water is at a premium, it values certainty and predictability. All appropriators
have a right to a certain quantity of water with a priority date of use.67 Under
the "first in time, first in right" principle, junior appropriators must forego
their water rights in favor of senior appropriators in times of shortage. 8
When tribal reserved rights to water are determined for Indian
country in prior appropriation states, those reserved rights must be meshed
with the state-law appropriation rights into a workable integrated whole. As
a result, the fundamental principles of the reserved rights doctrine are applied
in particular ways in western states to create that integrated system. More
specifically, tribal reserved rights to water in appropriation states are
quantified and assigned priority dates.69 With those two applications, water
managers can ensure that non-Indian state-law rights do not interfere with
prior tribal rights and vice versa.
A. PriorityDates
For a state-law appropriator, the priority date is the date on which
water is diverted and put to a beneficial use as defined by state law.7' For
tribal reserved rights, the priority date is the date on which the water right
came into being. Thus, for water reserved to fulfill the purposes for which
the land reservation was set aside, the tribal priority date is the date of the
creation of the reservation.7 ' For water reserved to preserve existing
aboriginal uses and practices, the tribal priority date is time immemorial.
67
See Beck, supra note 3, § 12.02.
68 Id.
69 See
infra text accompanying notes 70-77.
See generally Beck, supra note 3, § 12.03; TARLOCK,supra note 1, at § 5:30.
71See, e.g., Winters v. United States, 207 U.S. 564, 577 (1908) (using the date
the
reservation was created, where the Court found the water was reserved to fulfill the purposes
of the reservation); Arizona I, 373 U.S. 546, 600 (1963) (finding Indian water rights created
on the date the reservation was created). Tribal water rights will generally pre-date most
non-Indian appropriations because most tribal reservations were established before
significant non-Indian appropriations were perfected. In one case, in fact, a state court
refused to determine whether a tribe had a time-immemorial priority date, on the ground that
even a priority date of creation of the reservation would accord the tribe the senior water
right in the area. See New Mexico ex rel. Martinez v. Lewis, 861 P.2d 235, 238 (N.M. App.
1993), cert. denied, 858 P.2d 85 (N.M. 1993).
72
See e.g., United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983), cert. denied, 467
U.S. 1252 (1984) (holding that a tribe's aboriginal water rights "necessarily carry a priority
70
2000]
TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
185
Assigning these priority dates to tribal rights allows Indian water rights to be
slotted in to the rank order system of prior appropriation states.
B. Quantification
Because the appropriation system depends upon certainty in amount
as well as priority in time, quantification of tribal reserved rights is necessary
for Indian country in western states. The method of quantifying tribal water
rights depends upon the type of reserved right at issue.
For water needed to fulfill the agricultural purposes for which
reservations were created, the primary quantification measure for reserved
rights is also an agricultural measure. Tribes are entitled to sufficient water
73
to irrigate all of the practicably irrigable acreage (PIA) of the reservation,
74
a determination that involves soil science, engineering, and economics.
For water reserved to continue aboriginal uses, the quantification
measure varies with the circumstances. Where the aboriginal practice of the
tribe was agriculture, the quantification of reserved water is that amount of
75
water historically used for irrigation. Where the aboriginal use is a foodgathering practice such as fishing, the quantification standard is the amount
7
of Water "necessary to maintain" the conditions that support the practice. " In
the case of fishing rights, for example, the reserved water right is the quantity
needed to maintain the fisheries, whether that amount is based on minimum
77
stream flow or water temperature or some other factor.
date of time immemorial"); State ex rel. Greely v. Confederated Salish & Kootenai Tribes,
712 P.2d 754, 764 (Mont. 1985) (asserting that a priority date of time immemorial applies
the Indians' use of the water "existed before creation of the reservation.").
where
73 The Supreme Court adopted
the PIA standard based on the recommendation of a special
master. See Arizona 1,373 U.S. at 600-01.
74
See In re General Adjudication of All Rights to Use Water in the Big Horn River System,
753 P.2d 76, 101-05 (Wyo. 1988), aff'd by an equally divided Court sub nom. Wyoming v.
United States, 492 U.S. 406 (1989).
7S See Gila
River Pima-Maricopa Indian Community v. United States, 695 F.2d 559, 561
(Fed. Cir. 1982); Gila River Pima-Maricopa Indian Community v. United States, 684 F.2d
864-65 (Ct. Cl. 1982).
852,
76
See Colville Confederated Tribes v.Walton (Walton I),647 F.2d 42, 48 (9th Cir. 1981),
cert. denied, 454 U.S. 1092 (1981).
'n See Colville Confederated Tribes v. Walton (Walton II), 752 F.2d 397, 405 (9th Cir.
1985), cert. denied, 475 U.S. 1010 (1986) (upholding an instream flow right of 350 acre feet
per year); United States v. Anderson, 6 Indian L. Rep. F-129, F-130 (E.D. Wash. 1979)
(finding that maintenance of trout fishery is related to maximum temperature as well as
minimum flow).
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IV. DIFFERENCES IN RIPARIAN LAW
States east and one tier west of the Mississippi River, those in the
humid areas of the country, use some form of riparian rights rather than the
prior appropriation system of the west.7" The primary focus of common-law
riparian rights is reasonable use:79 all riparian owners" have the right to make
a reasonable use of the water, and no riparian may unreasonably interfere
with the rights of any other riparian."' These common-law correlative rights,
however, are gradually being replaced by regulated riparianism, with about
half the eastern states now exercising some form of state regulation of
riparian rights. 2 This section will look first at common-law correlative rights
and how they differ from prior appropriation doctrine, and then turn to the
more recent development of regulated riparianism.
78
A number of states with both humid and arid climates developed dual systems of riparian
and appropriation rights. Most of these states-located on the west coast and along the line
from the Dakotas south to Texas--eventually moved to pure appropriative rights. See
generally Dellapenna, supra note 56, § 8 (discussing appropriative rights and dual systems).
A few, however, retain a dual approach. Id.§ 8.02. For an analysis of tribal water rights in
dual-system states, and particularly the unique circumstances posed by the status of the Five
Civilized Tribes in Oklahoma, see Taiawagi Helton, Comment, Indian Reserved Water
Rights in the Dual-System State of Oklahoma, 33 TULSA L.J. 979 (1998).
79 The natural flow theory of riparian rights--that riparian owners were entitled to the
natural flow of the stream undiluted in quantity or quality-has been replaced in virtually
all instances by the reasonable use theory. See TARLOCK, supranote 1, § 3:12 (asserting that
reasonable use is now the standard in most states, and discussing case law that attempts to
define "reasonable"). Because natural flow has essentially been abandoned in riparian state
law, see id., this article will not address it.
80 At common law, riparian rights attach only to riparian
land, and a riparian owner is
anyone who owns land abutting a watercourse. See generallyTARLOCK, supra note 1, § 3:8
(defining a riparian right). Prior appropriation rights, by contrast, do not depend upon
ownership of land riparian to a water source. See id. § 5.1 (discussing prior appropriation
rights as "a theory of water rights separate from land ownership") Similarly, the Regulated
Riparian Model Water Code eliminates the common-law requirement of riparian ownership.
THE REGULATED RjPARIAN MODEL WATER CODE
§ 2R-1-02 (American Society of Civil
Engineers, Water Laws Committee, Joseph W. Dellapenna, ed., 1997) [hereinafter
MODEL
CODE].
81See Harris v. Brooks, 283 S.W.2d 129, 134 (Ark. 1955) (holding that when one lawful use
of water interferes with another, the court must determine whether the interfering use is
unreasonable). See generally TARLOCK, supra note 1, § 3:12 (discussing riparian rights of
surface waters); see also Dellapenna, supra note 56, § 7.02(d) (discussing basic concepts of
reasonable use theory of riparian water rights).
82 See Dellapenna, supra note 56, § 9.03.
20001
TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
A. Common-Law Riparian Rights
Common-law riparianism differs from prior appropriation in at least
three aspects that may affect the specific implementation of tribal reserved
water rights. Two of these distinctions arise from the correlative nature of
riparian rights, and the third from the way in which riparian rights are
implemented and enforced.
First, riparianism does not include the feature of temporal priority of
rights. Riparian rights are not ordered by the date of first use, but by the
correlative right of reasonable use. 3 A central feature of riparianism is the
right of the riparian owner to initiate a reasonable use of the water at any
time."' Scholars disagree about the extent to which pre-existing exercises of
riparian rights are in fact judicially protected against later exercises, 5 but
temporal priority is technically not a principle of common law riparian rights.
Second, riparian rights are generally not quantified. The doctrine of
correlative rights--that every riparian owner has a right to make a reasonable
use of the water at any time, so long as that use does not interfere with the
rights of other riparians 8 --necessarily introduces uncertainty and a lack of
predictability into the riparian system. A riparian owner has a right to use not
a specific quantity of water, but that amount of water that is reasonable under
the circumstances, taking account of the correlative reasonable use rights of
all other riparians on the watercourse.87 What constitutes a reasonable use
See Dellapenna, supra note 56, § 7.03(d) ("[T]emporal priority is at best only marginally
relevant....").
8
4See Tarlock, supra note 1, § 3:12 (asserting most states allow changes in water use under
the reasonable use standard).
85 Professor Dan Tarlock asserts that in cases of conflicting riparian rights, courts often take
account of which use began first. TARLOCK, supra note 1, § 3:11. Similarly, the Restatement
(Second) of Torts § 850A(h) (1977) considers first use controlling in determining the
comparative "reasonableness" of two or more competing uses. Professor Joseph W.
Dellapenna, on the other hand, contends that in practice, first-in-time has essentially no
impact on judicial decisions. See Dellapenna, supra note 56, § 7.03(d).
86 See Dellapenna, supra note 56, § 7.01 ("The basic concept of riparian rights is that an
owner of land abutting a waterbody has the right to have the water continue to flow across
or stand upon the land, subject to the equal rights of each owner.").
87 See id. at § 7.02(d) ("The only real restriction on use by any one riparian, then, is that a
use cannot inflict a 'substantial harm'... on any other riparian user." (citing as one example
Dumont v. Kellogg, 29 Mich. 420 (1874))).
83
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quantity is thus potentially subject to change in light of subsequently initiated
riparian uses."
Third, riparianism has no system of administrative oversight. In the
western appropriation states, water rights are administered by state agencies. 9
Rights must be perfected, in part by registering the right with the appropriate
state agency.9" The agency records water rights, monitors water use, and
takes action where necessary to protect users with earlier priority dates. In
eastern riparian systems, under the common law, there is no administrative
oversight of or involvement in water rights.9 ' Instead, implementation and
enforcement of riparian rights are accomplished through private lawsuits. 92
Any claim of an interference with riparian rights is addressed in the courts
through a lawsuit filed by an injured riparian owner.93
B. Regulated Riparianism
Increasingly, common-law riparianism is giving way to a system of
regulated riparianism. Some form of state regulation of riparian rights now
exists in about half the riparian states, 9' and the American Society of Civil
Engineers has developed The Regulated Riparian Model Water Code.95
Although existing regulatory systems differ widely, and thus any
generalizations are necessarily overbroad, some general trends can be noted
88
See, e.g., Harris, 283 S.W.2d at 134:
When one lawful use of water interferes with or detracts from another
lawful use, then a question arises as to whether, under all the facts and
circumstances of that particular case, the interfering use shall be declared
unreasonable and as such enjoined, or whether a reasonable and equitable
adjustment should be made, having due regard to the reasonable rights of
each.
89
See generally Beck, supra note 3, § 14 (discussing in detail the permit and regulatory
process). The exception is Colorado, which administers state water rights through a system
of specialized water courts. See id. at § 14.04.
90
See id. at § 14.03 (discussing the different methods of registration and noting most state
registration procedures involve filing an application).
91 But see Dellapenna, supra note 56, at § 9.03 (discussing the recent rise of regulation and
administrative
oversight of riparian rights in eastern states).
92
See id. at § 7.03 (discussing the resolution of conflicts among riparian users).
93 See id.
94
See id. at § 9.01.
See generally MODEL CODE, supra note 80. For an analysis of the Model Code, see
generally Robert E. Beck, 25 WM. & MARY ENVTL L. & POL'Y REv. 113 (2000).
95
2000]
TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
by examining common features of state regulatory schemes and the Model
Code.
Of particular interest to the eventual coordination of tribal reserved
riparian systems often institute a permit system for the
regulated
rights,
exercise of riparian rights. 6 A riparian owner wishing to make use of the
water, especially a consumptive use, petitions a state agency for a permit to
use a specified quantity of water.97 The agency will grant the permit based
on a number of state-law factors, including whether the proposed use is
"reasonable" (an incorporation of the common-law standard).98 If the agency
grants a permit, the use right is not perpetual but for a term of years, although
the number of years varies from state to state."
Regulated riparianism thus introduces into eastern state water law two
°
of the central features of prior appropriation: quantification" and some
measure of temporal priority. Although temporal priority is not a stated
feature of regulated riparianism, some degree of it is inherent in the system.
First, existing uses may be exempt from the permit requirement,' °' essentially
96
See Dellapenna, supra note 56, § 9.03 (describing the general process of obtaining a
MODEL CODE, supra note 95, §§ 6R-l-01, 6R-1-04.
permit);
97
See Dellapenna, supra note 56, § 9.03(a); see also MODEL CODE, supra note 95, §§ 6R-2-
01, 7R-1-01 (listing requirements of a permit application and permit terms and conditions,
respectively).
98 See Dellapenna, supra note 56, § 9.03(b) ("[M]ost regulated riparian statutes provide as
a sole standard a command that the use be reasonable."); MODEL CODE, supra note 95, § 6R-
3-01(l)(a).
9 See Dellapenna, supra note 56, § 9.03(a)(4) (asserting most states have "opted for the
concept of periodically renewable water permits."); MODEL CODE, supra note 95, § 7R-102(1) (providing for "a period of time representing the economic life of any necessary
investments not to exceed 20 years," although it allows permits "not to exceed 50 years" for
governmental and public bodies as reasonable to retire debt accrued for the construction of
related facilities). Nonetheless, five regulated riparian states apparently issue permits in
perpetuity. See Dellapenna, supra note 56, § 9.03(a)(4) n.396 (referencing Delaware,
Indiana, Kentucky, New York, and Virginia).
100 See MODEL CODE, supra note 95, § 7R-l-01(b) (codifying that the permit shall contain
"the authorized amount of the withdrawal and the level of consumptive use, if any.");
Dellapenna, supra note 56, § 9.03(a)(5)(A) n.447 (listing nine states that include the quantity
of water consumed or diverted as a condition of the permit, and three others that require
quantity information in the permit application).
1o1 The grandfathering in of existing uses is often a feature of existing regulated riparian
systems. See Dellapenna, supra note 56, § 9.03(a)(3). The Model Code requires existing
riparian users to apply for a permit within one year, MODEL CODE, supra note 95, § 6R1003(1), unless the existing use is an exempt use. Exempted uses are so-called small
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granting those uses a permanent priority over new uses. Second, the agency
must determine that a proposed use is not only reasonable, but that any
withdrawal "in combination with other relevant withdrawals, will not exceed
the safe yield of the water source."' 2 If the water available in a particular
watercourse over and above the safe yield is adequate for all proposed
withdrawals, then no temporal priority is involved. But if a sufficient amount
of water is not available, then later-proposed withdrawals may be denied or
curtailed because the permits already granted have left insufficient water to
safely allow the newly proposed uses. 3 In cases of an inadequate water
supply for all proposed uses, then, regulated riparianism necessarily
introduces a measure of first-in-time.
Nonetheless, the temporal priority of regulated riparianism differs in
material respects from that of prior appropriation. Most importantly, the right
is usually temporary, running only for the term of years of the permit.'"
There is no right of automatic permit renewal; a subsequent permit to
continue a use requires a redetermination of the relevant factors, including
whether the use is reasonable in light of other withdrawals, although renewal
of a permit for an existing use can be favored over competing proposals "if
the public interest is served equally" by both uses.' In addition, in times of
withdrawals, those less than 100,000 gallons per day. Id. § 6R- 1-02(1). The state agency
may nonetheless require registration of exempt uses. Id. § 6R- 1-06.
102 MODEL CODE, supra note 95, § 6R-3-01(l)(a)-(b). Safe yield is defined as "the amount
of water available for withdrawal without impairing the long-term social utility of the water
source, including the maintenance of the protected biological, chemical, and physical
integrity of the source." Id. § 2R-2-21(1). In addition, the agency is to determine the
reasonableness of the proposed use, and the definition of "reasonable" includes
consideration of other uses of the watercourse and "the probable severity and duration of any
injury" foreseeable to other uses. Id. at § 6R-3-02. See also Dellapenna, supra note 56, §
9.03(b)(1) (noting that most of the existing riparian regulatory schemes adopt the
reasonableness standard either expressly or implicitly and that probable injury to other users
is a permit criterion in several of the regulated riparian states).
103 See MODEL CODE, supra note 95, § 6R-3-02 commentary. See also id. § 6R-2-03
(providing that subject to certain exceptions such as routine applications, public health and
welfare, and joint consideration of pending applications for withdrawals from the same
source, permit applications are to be processed in the order they are received).
104 MODEL CODE, supra note 95, §§ 7R-1-01(j), 7R-1-02(l); Dellapenna, supra note 56, §
9.03(a)(4) (explaining that most states set a time limit through the use of permits). A few
states, however, apparently grant regulated riparian permits in perpetuity. See id. at n.396.
5
10
See MODEL CODE, supranote 95, § 6R-3-04(4); see also id.§ 7R-1-02(2). In evaluating
whether the public interest is equally served by both the renewal use and the new proposed
use, the agency is to "giv[e] consideration" to the investment in facilities made by the
existing permit holder. Id. at § 6R-3-04(4).
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
water shortage, permit holders do not have priority of right based on first-intime with respect to other permit holders. Instead, the state agency is
empowered to restrict the terms and conditions of any permit in light of state
drought management strategies and in accordance with the preferences for
water use.10 6 The temporal priority of regulated riparianism is thus far from
the strict first-in-time, first-in-right doctrine of the western states, but
regulated riparianism does nonetheless impose some form of the temporal
priority concept so foreign to common-law riparian rights.
V. TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
The final consideration, undertaken in light of the distinctions
between western and eastern state water law, is the question of tribal reserved
rights to water in riparian jurisdictions. That consideration, in turn, involves
two issues: first, whether the fundamental principles of tribal reserved rights
apply in riparian states; and second, if they do, how tribal reserved rights and
riparian rights can be integrated into a workable water law system.
A. The FundamentalPrinciples
The first issue is the application of the fundamental principles
governing tribal reserved rights to water or, more simply, whether tribes have
those rights in riparian states. The answer is an equally simple yes.
Reserved rights to water for Indian tribes exist for two purposes: to
allow tribes to continue pre-existing or aboriginal practices, particularly those
food-gathering practices essential to the tribe, and to allow the purposes for
0 7 Neither purpose is
which the reservation was created to be accomplished.
confined to a line west of the 100th meridian. The Chippewa of the western
Great Lakes reserved to themselves the right to continue to hunt and gather
the wild rice, even in their ceded territory,'08 as surely as the tribes of the
Pacific Northwest reserved to themselves the right to continue to fish at their
106 MODEL CODE, supra note 95, § 7R-3-01; see also Dellapenna, supra note 56, § 9.03(d).
The Model Code determines preferences among water rights in cases of insufficient water
to grant all permits on a watercourse. MODEL CODE, supra, § 6R-3-04. As with commonlaw riparianism, domestic use has the top priority. Id.
107 See supra note 95, sections II.A-B.
108 See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 177 (1999)
(referencing the 1837 Treaty with the Chippewa, 7 Stat. 537, and the 1842 Treaty with the
Chippewa, 7 Stat. 591).
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usual and accustomed places.' The federal government, doggedly pursuing
a policy of turning Indians into yeoman farmers, intended one purpose of the
Chippewa reservations in Michigan"0 to be agriculture as surely as it
intended that purpose for the Wind River Reservation in Wyoming. 11" Eastern
reservations were intended to be homelands for the tribes that occupied them
no less than western reservations."'
Professor Joseph Dellapenna has suggested that Indian tribes in
riparian states should have only the same riparian rights as any state-law
user." 3 The gravamen of his argument appears to be the notion that tribal
reserved rights to water as litigated thus far are appropriative rights, and that
appropriation rights do not work in a riparian system." 4 His initial premise,
however, fundamentally misperceives the foundation of tribal reserved rights
to water. Tribal reserved water rights are not appropriation rights; l
109 See Washington
v. Wash. State Com. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 662
& n.2 (1979) (gathering treaties with tribes in what is now Washington State that contain the
tribal reservation of the "right of taking fish").
Justice Thomas argued recently that the Court should distinguish between reserved
rights, such as the "right of taking fish" found in most Pacific Northwest treaties, and
reserved privileges, such as the "privilege of hunting, fishing, and gathering the wild rice"
found in the Chippewa treaties. Mille Lacs, 526 U.S. at 226 (citing 1837 Treaty with the
Chippewa, 17 Stat. 537). The Court, however, rejected that notion and refused to adopt the
proposed distinction on the grounds that the Chippewa would not have understood any such
fine legal distinction in the treaty language and that the distinction would make the treaty
"essentially an empty promise because it gave the Chippewa nothing that they did not
already have." Id. at 205-06.
1 See
Treaty with the Chippewa of Saginaw, Swan Creek, and Black River, 1864, Arts. 4-5,
14 Stat. 637, reprintedin II CHARLES J. KAPPLER, INDIAN AFFAIRS: LAWS AND TREATIES
868, 870-71 (1904).
"' See In re Big Horn I, 753 P.2d 76, 95-97 (Wyo. 1988), aff'd by an equally divided Court
sub nor. Wyoming v. United States, 492 U.S. 406 (1989) (finding the primary purpose of
the Wind River Reservation to be agriculture, based on the extensive agricultural provisions
of the 1868 Treaty with the Shoshones and Bannacks).
112 See, e.g., the Treaty of Wolf River setting aside a reservation for the Menominee Tribe,
Treaty with the Menominee, May 12, 1854, 10 Stat. 1064, 1065 ("[T]he United States agree
to give [the lands specified] ... to said Indians for a home."); Colville Confederated Tribes
v. Walton, 647 F.2d 42, 47 (9t Cir. 1981), cert. denied, 454 U.S. 1092 (1981) (noting that
the "general purpose" of an Indian reservation is "to provide a home for the Indians.").
113 See Dellapenna, supra note 56, § 9.06(b)(2).
114 i'd.
In fact, tribal reserved water rights differ in material ways from state-law appropriation
rights. For example, tribal rights arise from the reservation of land or the preservation of
aboriginal uses. Prior appropriation rights, on the other hand, do not vest until the
115
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
appropriative rights are the state law system used throughout the West.
Instead, tribal reserved rights are neither appropriative nor riparian,116but a
third, distinct type of water right reserved as a matter offederal law.
Moreover, there are a number of other problems with Professor
Dellapenna's approach. First, it would mean that tribal rights, as guaranteed
by federal law, depend upon annual rainfall. Indian country in the east would
carry fewer tribal rights than Indian country in the west.'17 Second, it would
accord Indian tribes in riparian jurisdictions only those rights that they would
have under state law. But the Court has stated definitively that federal law,
not state law, determines tribal water rights." 8 And third, it would accord
tribes only those rights the tribe would have if it were nothing more than a
property owner." 9 Indian tribes, however, are not merely property owners
appropriator diverts the water and puts it to an actual beneficial use. See Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 805 (1976). In addition, tribal rights
cannot be lost through non-use, but appropriative rights can be abandoned or forfeited if the
appropriator does not maintain continued beneficial use of the water. See id.
116 See, e.g., Winters, 207 U.S. 564 (1908); Arizona I, 373 U.S. 546, 595-601 (1963).
117 Absent acts of Congress or treaties applicable to specific tribes, the Court has never
distinguished among Indian tribes in the application of principles of federal Indian law.
Moreover, as Professor Michael Blumm notes, subjecting tribal rights to pro rata reductions
in times of water shortages, a feature of riparianism, "could impermissibly defeat the federal
purpose of the reservation." Blumm, supra note 6, § 37.01(c)(2).
118 See Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571 (1983) (imposing on state
and federal courts adjudicating tribal water rights "a solemn obligation to follow federal
law."). See also United States v. Adair, 723 F.2d 1394, 1411 n.19 (9th Cir. 1983), cert.
denied, 467 U.S. 1252 (1984) ("The fact that water rights of the type reserved for the
Klamath Tribe are not generally recognized under state prior appropriations law is not
controlling as federal law provides an unequivocal source of such rights."); State ex rel.
Greely v. Confederated Salish & Kootenai Tribes, 712. P.2d 754, 765-66 (Mont. 1985)
("state courts are required to follow federal law with regard to [tribal] water rights.").
119 This is not to deny that Indian tribes, as property owners, may be able to assert riparian
rights to fulfill needs for water over and above their reserved rights. In the context of federal
reserved water rights for reservations other than those for Indians (e.g., national parks and
national forests), the Supreme Court has distinguished between the primary and the
secondary purposes of the federal reservation. See United States v. New Mexico, 438 U.S.
696, 700 (1978) (determining federal reserved water rights for the Gila National Forest). The
Court held that water is impliedly reserved for the primary purposes of these federal
reservations, but that water for secondary purposes must be obtained pursuant to state law.
See id. at 702.
Subsequently, the California Supreme Court recognized the federal government's
right to riparian water rights to fulfill the secondary purposes of federal reservations. See
In re Water of Hallett Creek Stream System, 749 P.2d 324 (Cal. 1988), cert. denied, 488
U.S. 824 (1988). In New Mexico, the Court held that the primary purposes of national
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within their reservations, but governments that entered into relations with the
United States. Tribal reserved rights to water arise from the resulting treaties
and treaty-substitutes. And the Court has been very clear that if an Indian
tribe has nothing under a treaty that it would not have without the treaty, then
the treaty is a nullity. 2 ' The Court will not assume that a tribe bargained for
forests, for which water rights are reserved implicitly as a matter of federal law, were timber
management and conservation of water flows only. 438 U.S. at 707-08. In Hallett Creek,
the federal government sought recognition of riparian water rights for the secondary purpose
of wildlife enhancement within a national forest. The California Supreme Court held that
as the proprietor of the lands, the United States retained its riparian rights for such purposes.
See 749 P.2d at 329-30, 335-36.
Similarly, the federal government's right to seek prior appropriation water rights has
been recognized in Nevada. See Nevada v. Morros, 766 P.2d 263 (Nev. 1988) (providing
an appropriative right to the Bureau of Land Management for stock and wildlife watering
purposes). For a fuller analysis of the Hallett Creek and Morros decisions, see Amy K.
Kelley, Federal-StateRelations in Water, 4 WATERS AND WATER RIGHTS § 36.04(a) (Robert
E. Beck ed., 1991).
The Supreme Court has not applied the New Mexico primary-versus-secondarypurpose principle to Indian reservations, and its relevance to tribal water rights is in
question. See COHEN'S HANDBOOK, supra note 14, at 583-84. Moreover, the state and
lower federal courts have taken varied approaches to its application. For example, the Ninth
Circuit determined that the "general purpose" of the Colville Reservation was a homeland
for the tribes, encompassing primary purposes of both agriculture and fisheries preservation.
See Colville Confederated Tribes v. Walton, 647 F.2d 42, 47-48 (9th Cir. 1981), cert.
denied, 454 U.S. 1092 (1981). The Wyoming Supreme Court, by contrast, held that the sole
"primary purpose" of the Wind River Reservation was agriculture. See In re Big Horn I, 753
P.2d 76, 97 (Wyo. 1988), aff'd by an equally divided Court sub nom. Wyoming v. United
States, 492 U.S. 406 (1989). Nonetheless, the California court's ruling in Hallett Creek
should be applicable to Indian reservations, and tribes should be entitled to seek state-law
riparian (or in the west, appropriation) rights for water for reservation purposes beyond those
for which the reservation was created. See Royster, supra note 24, at 103. Thus, for
example, the Wind River Tribes should be able to seek state-law prior appropriation rights
for water for "industrial" purposes, which the state court expressly rejected as a purpose for
which the reservation had been established. See Big Horn, 753 P.2d at 98.
120 See United States v. Winans, 198 U.S. 371 (1905); Washington v. Wash. State Com.
Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979); Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 205-206 (1999).
The issue arose with respect to the language in treaties with the tribes of the Pacific
Northwest reserving the right to fish "in common with" non-Indians at the tribes' usual
fishing places, including those places located outside reservation borders. See Fishing
Vessel, 443 U.S. at 662 n.2. In Winans, the Winans brothers owned land surrounding a
traditional Yakama fishing place on the Columbia River. See 198 U.S. at 371-72. The
Winans argued that because their property ownership barred access to non-Indians under
state trespass law, and because tribal rights were held "in common with" non-Indians, tribal
members should also be subject to state trespass restrictions. Id. at 376. The Court,
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
only those rights it would have had anyway, and it will not read treaties and
treaty-substitutes as guaranteeing only those rights that tribes would have had
under state law.
The fundamental principles of the federal reserved rights doctrine of
tribal water rights thus should apply in the eastern United States as well as in
the West. 2' Those principles ensure that tribes east of Kansas City'2 2 are
guaranteed the same treaty and treaty-substitute rights, as a matter of federal
law, as Indian tribes west of that point.
however, held that although the fishing right was in common, "the Indians were secured in
its enjoyment by a special provision of means for its exercise." Id. at 381. Their right of
taking fish, the Court determined, necessarily included the right to cross private land to reach
their fishing places and the right to occupy it for the purposes of the treaty right. "No other
conclusion would give effect to the treaty." Id.
In Fishing Vessel, 74 years after Winans, the State of Washington reiterated the
Winans' argument, with the same result. The State argued that the treaty provision reserved
only access to the fishing places and an "equal opportunity" with non-Indians once there to
attempt to catch fish. 443 U.S. at 675-76. The Court again rejected the contention that the
treaty provisions guaranteed to the tribes only the rights the tribes would have had without
the treaties, holding that the tribes reserved a right to take a share of the fish. See id. at 679.
The Court reasoned that the tribes bargained for the provisions in order to continue their
aboriginal fishing practices, and "they would be unlikely to perceive a 'reservation' of that
right as merely the chance, shared with millions of other citizens, occasionally to dip their
nets into the territorial waters." Id.
Moreover, the Court drew an express analogy to reserved water rights. After
discussing a half-dozen of its prior cases that rejected the "equal opportunity" with nonhas been
Indians view of treaty reservations, the Court noted that "[a] like interpretation ...
followed by the Court with respect to... water rights that were merely implicitly secured
to the Indians by treaties reserving land-treaties that the Court enforced by ordering an
apportionment to the Indians of enough water to meet their subsistence and cultivation
needs." Id. at 684 (citations omitted). This analogy helps clarify that the Court, in
fashioning the tribal reserved water rights doctrine, did not intend tribal water rights to be
determined by state law principles.
121 As Professor Dellapenna notes, Montana at the time of the 1908 Winters decision was
thought to be a riparian jurisdiction. See Dellapenna, supra note 56, § 9.06(b)(2). On that
basis, the doctrine of tribal reserved rights to water was first announced within the context
of riparianism, and only subsequently developed the specific details necessary to coordinate
those reserved rights with state-law appropriative rights. See supra Part III. Read against
a riparian backdrop, Winters stands for the proposition that in times of water shortage, Indian
tribes do not share in any pro rata reduction of water. Rather, tribal reserved rights are
protected as a matter of federal law against the subsequent exercise of riparian rights.
122 Professor Dellapenna uses Kansas City as a useful shorthand for the dividing line
between eastern riparian jurisdictions and western appropriation states. See Dellapenna,
supra note 56, § 6.01.
196
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B. Implementing TribalResevedRightsin Riparian Systems
Although the -fundamental principles of tribalreserved water rights
apply in eastern states.the same as they apply in western states, the specificdetails of how to integrate tribal reserved rights with the state-law rights so
that a workable system emerges- may differ between appropriation and
riparian jurisdictions. More particularly, the issues in riparian jurisdictions
revolve around quantification of tribal reserved rights, and the administration
and enforcement of a coordinated system.
The quantification of tribal reserved water rights -in riparian states
will depend upon the purpose, for which water was reserved. Where a
reservation was set aside to create an agrarian society, the measure of the
water right will likely be the same as it is in the western states: practicably
irrigable acreage, the shorthand measure for that amount of water needed to
make the land productive for agricultural purposes. The Supreme Court has
rejected a more indeterminate standard of "reasonably foreseeable needs,"
holding that "the only feasible and fair way by which reserved water for the
reservations can be measured is irrigable acreage."' Where a reservation
was set aside to preserve traditional agriculture, the western standard of
historical water use may prove appropriate. And where a reservation was set
aside to preserve other aboriginal practices, the measure of the water right
will likely, again as in the West, be determined by the specific circumstances
of the practice and the watercourse.
Nonetheless, the quantification of tribal rights allows for innovative
approaches. In the prior appropriation jurisdictions, tribal reserved rights are
nearly always quantified as a set amount: a specific number of acre feet or a
flow of a sppcific number of cubic feet per second.' 4 That kind of definiteamount quantification is generally necessary in prior appropriation
jurisdictions in order to provide predictability and protection ofjunior users
against arbitrary curtailment. Although set-amount quantification may prove
to be advantageous.in the East as well, other approaches are possible in
systems where the states do not prize certainty as highly as western states do.
For example; the Seminole Tribe of Florida negotiated a compact that
provides for a tribal water right of fifteen percent of the available water from
'"Arizona I, 373 U.S. 546, 600-01 (1963).
-One exception was the quantification of a fisheries right as that. amount of water
necessary to keep the stream at 68 degrees or less, with a minimum flow of 20 cubic feet per
second. See United States v. Anderson, 6 Indian L. Rep. F-129, F-130 (E.D. Wash. 1979).
2000]
TRIBALRESERVED RIGHTS IN RIPARIAN STATES
specified sources, rather than a set amount,, The flexibility, offered by.
apportionment as a percentage of available water, or as a percentage subject
to a fixed minimum amount, mayin some cases-better serve both tribes and
states.
Once the tribal water right is determined-whether as a determinate
or indeterminate amount, or some combination-that right must then be
coordinated with state-law riparian rights to establish a workable integrated
system.. That coordination presents different issues in regulated, riparian and
in common-law riparian jurisdictions.
Certainly integrating tribal reserved rights in a- regulated riparian
jurisdiction poses fewer administrative headaches than doing .so in a
common-law riparian state. Regulated riparianism necessarily introduces
into riparian jurisdictions concepts of quantification and temporal right.. 6
Water use permits specify a quantity of water that the riparian owner may use
for a specified term of years, with an upper limit on the combined riparian
uses of a watercourse in order to protect the safe yield or minimum water
levels of the source. 27 Once the amount of the tribal reserved right is
determined, it may simply be possible to add that amount to the minimum
flow that is beyond riparian use.' In other words, the water available for
riparian use permits would be the available water in a source over and above
the safe yield plus tribal reserved rights. That approach would guarantee the
paramount and perpetual nature of tribal water rights and, at the same time,
minimize the burden of administering a coordinated system.
Integrating tribal reserved rights into a workable, system in a
common-law riparian.jurisdiction will undoubtedly prove more difficult.
Much of the difficulty arises from the attempt to coordinate a set of
quantified rights for tribes with a set of correlative rights for riparian owners..
Tribal reserved rights cannot be subject to correlative use, however, without
destroying the paramount, nature of those rights and allowing state law to
trump federal rights. The issue then becomes how to integrate the two types
of rights.
One possibility is to incorporate into state riparian law the doctrine
that a riparian use that interferes with a paramount tribal reserved right is
unreasonable per se. Reasonableness of use among state-law riparian users
-
12
The Seminole Compact is discussed infra at text accompanying notes 137-142.
1 See supra section !V(B).
26
i02-103 and accompanying text.
earlier, however, any riparian use that began prior to the existence of the tribal
reserved right would be pairamount to the tribal right.
7
See supra notes
12
'28 As noted
198
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would continue to be determined according to common-law principles,' 9 but
a kind of strict liability would apply to interference with paramount tribal
rights.
Another, related approach is to satisfy the tribal water right before
any riparian rights arising subsequent to the tribal right. 30 In case of water
shortage, the burden would be allocated among the riparian users.' 3' Professor
Michael Blumm suggests that this approach is consistent with the reserved
rights doctrine because it protects the paramount nature of the tribal rights.'
It is also consistent with the correlative nature of common-law riparian rights,
which has traditionally allocated the burden of any water shortage among the
riparian owners. Under this approach, riparian owners maintain the same
relationship to one another that they presently have under the common law,
while protecting tribal reserved rights from state-law interference.
Either approach has enforcement difficulties. Because common-law
riparianism does not depend upon an administrative structure, it is enforced
See Dellapenna, supra note 56, §§ 7.02(d)(2)-(3).
130 Professor Dellapenna worries that this would create a problem of circular priorities:
129
riparian A can show priority over tribe B which has priority over riparian C, but a court
concludes that C's use is more reasonable than A's. See Dellapenna, supra note 56, §
9.06(b)(2). He then asserts that the court could protect C's use only to the extent of A's
quantity. It is true that if there is insufficient water for both B and C, the tribal right is
paramount over C. But the paramount nature of the tribe's right does not affect the relations
between A and C as a matter of state riparian law. If A's use is determined to be a
permissible reasonable use under the state's law, then it is protected against interference
from the exercise of the tribal right. If A's use is determined not to be a permissible
reasonable use in light of C's more reasonable use, then state law will enjoin A and A will
cease to the use the water. Nothing in that injunction, however, alters the relations between
riparian A and tribe B: if A is using a water right that was in existence prior to the existence
of the tribal right, the tribe cannot interfere with it. Similarly, if C's use is held more
reasonable by the state court, then C is manifestly entitled to use the water as a matter of
state law. But C's use cannot interfere with the paramount federal-law rights of the tribe.
Regardless of whether C's use replaces A's as the more reasonable or supplements A's on
the ground that both together are reasonable, C's use is subject to the tribal reserved rights.
There is thus no circle of priorities to cause concern. C's rights with respect to the federallaw tribal rights do not change regardless of whether or not A's use is allowed to continue
as a matter of state law.
131 See Blumm, supra note 6, § 37.01(c)(2) (referencing Eva Hanna Hanks, Peace West of
the 98th Meridian-Solutionto Federal-StateConflicts over Western Waters, 23 RUTGERS
L. REv. 33, 39-40 n.25 (1968)).
132 See id.
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TRIBAL RESERVED RIGHTS IN RIPARIAN STATES
199
through private lawsuits in state court.' 33 Without a state administrative
agency to turn to, any tribe contending that a riparian use is interfering with
a paramount tribal right must, if negotiations fail, bring suit in federal or state
court.13 The expense and delay involved in pursuing litigation could
severely deplete tribal resources, perhaps forcing tribes to choose between
allocating often-limited funds to litigation or foregoing a challenge to riparian
uses that interfere with the tribal reserved rights.
In addition, either approach arguably involves the issue of temporal
priority for paramount tribal rights. Although it appears difficult to both
protect the federal-law tribal rights and avoid some temporal principle, it is
not impossible. The Court itself has suggested a way to conceptualize tribal
reserved water rights as an apportionment of water. 3 1 Viewed in that light,
the question is not which user (tribe or riparian) is first in time, but how much
water is apportioned to each. The tribal apportionment, however quantified,
is available for tribal use. All remaining water is available for riparian use.
Neither has "priority" over the other; rather, each has a right to use its portion
of the water source according to the appropriate law: federal law for tribal
reserved rights and state law for riparian rights.
If the difficulties in coordinating tribal and riparian rights highlight
anything, it is that this is an issue that cries out for negotiated solutions.
Water rights settlements, increasingly common in the western states, offer the
considerable advantage of catering to the specific needs and conditions of the
parties. 36 In fact, the only lawsuit filed to date to determine tribal water
rights in a riparian state resulted in a settlement act. The Seminole Water
Rights Compact, 3 1 incorporated as a matter of federal law into the Seminole
Riparian rights are thus more in the nature of tort actions than property rights. See
Dellapenna, The Right to Consume Water Under "Pure" RiparianRights, 1 WATERS AND
WATER RIGHTS § 7.02(d)(1) (Robert E. Beck ed., 1991).
134 Given the mixed reception of tribal claims to reserved water rights in western state courts,
most tribes would likely choose to file suit in federal district court.
135 See Fishing Vessel, 443 U.S. at 684 ("an apportionment to the Indians of enough water
to meet their subsistence and cultivation needs.").
136 See generally Blumm, supra note 6, § 37.04(c)(1) (1999); JON C. HARE, INDIAN WATER
133
RIGHTS: AN ANALYSIS OF CURRENT AND PENDING INDIAN WATER RIGHTS SETTLEMENTS
(1996); PETER W. SLY, RESERVED WATER RIGHTS SETTLEMENT MANUAL (1988); INDIAN
WATER IN THE NEW WEST (Thomas R. McGuire, et al., 1993).
137
25 U.S.C. § 1772e. The Compact is reprinted in Seminole Indian Land Claims Settlement
Act of 1987: Hearingon S. 1684 Before the Senate Select Comm "n on IndianAffairs, 100th
Cong., 1st Sess., 83-122 (1987); the text of the Compact is also available at http://www.
seminoletribe.com/services/water/compact.doc (last visited October 10, 2000) [hereinafter
200
WM. & MARY ENVTL. L.
& POL'Y REV.
[Vol.25:169
Indian Land Claims Settlement Act of 1987,38 represents a unique agreement
tailored to the specific circumstances of the parties.
Nonetheless, the Seminole Compact may serve as a template for
tribes and states elsewhere in the East. It protects the Seminole Tribe's rights
by guaranteeing a perpetual right to a specified amount of water, free from
state regulation.'3 At the same time the Seminole Compact does not quantify
'the tribal right as an absolute amount, but rather expresses the right as a
percentage of the water available from specified sources." To ease the
administrative burdens on.thestate, the Tribe agreed to file an annual plan
with the state water management district 4' and to comply with most of the
non-procedural "terms and principles" of the state water system.14 1 The
Seminole Compact thus preserves the paramount nature of tribal reserved
rights, but with an eye to the indeterminacy of riparian rights and the
difficulties of administering a coordinated system. It may, therefore, prove
a valuable model in other riparian jurisdictions.
VI. CONCLUSION
Although the doctrine of tribal reserved rights to water has developed
within the context of western prior appropriation law, tribal water rights
remain a distinct body of federal-law rights that transcend theparticulars of
the state-law system.. The fundamental principles of those federal-law rights,
designed to ensure that Indian tribes retain the benefits of their reservations
and the rights they bargained for in treaties and agreements, govern tribal
Seminole Hearing]. See generally Jim Shore & Jerry C. Straus, The Seminole Water Rights
Compact and the Seminole Indian Land Claims Settlement Act of 1987, 6 J. LAND USE &
ENVTL L. 1 (1990); Barbara S. Monahan, Note, Florida'sSeminole Indian Land Claims
Agreement: Vehiclefor an Innovative Water Rights Compact, 15 AM. INDIAN L. Rhv. 341
(1991).
138 Seminole Indian Land Claims Settlement Act
of 1987, Pub. L. No. 100-228, 101 Stat.
1556 (codified as amended in 25 U.S.C. § 1772).
1 Seminole Hearing,supra note 137,
at 41-44.
140 Seminole Compact at 25-27, reprintedin Seminole Hearing,supra note
137, at 111-13.
The percentage of the tribal right is generally fifteen percent. In this sense, the Seminole
Compact appears.to apportion the water between the Tribe and the state riparian users. See
supra note 135 and accompanying text (discussing the idea of viewing tribal reserved rights
in riparian states as an apportionment rather than a priority).
141 Florida practices a form of regulated riparianism,
requiring a state permit for riparian
uses. Water use is administered not by a central state agency, but by regional water
management districts. See FLA. STAT. ANN. §§ 373.203-249.
142 Seminole Hearing,supra note 137, at 41-44.
•2000]
TRIBAL RESERVED RIGHTsIN RIPARIAN STATES
201
water rights nationwide, regardless of the water law system employed by the
states. Tribes in eastern riparian states, no less than those in western
appropriation states, hold paramount rights. to water tO support both the
purposes for which their reservations were set aside and their reserved rights
a
to continue aboriginal practices.
Nonetheless, the distinctions between the state law systems of prior
appropriation and rpa'anism suggest that the tribal right to water might need
to be implemented differently in eastern states. In .the West, inadequate water
supplies give rise to a system that prizes certainty and predictability in water
rights. The definite quantification of and priority, dates assigned to tribal
water rights in western states allow the Indian rights to be coordinated with
state-law appropriation rights.in a workable.integrated. system. In eastern
jurisdictions, however, the law of riparian-rights rests on correlative rights to
the use of water, a,.system that is inherently: uncertain and relatively
move'to. regulated -ripariansm
unpredictable. Although the moderntemporal
priority, water rights even
introduces aspects of quantification and
in regulated riparian states generally do not have .the absolute perpetual
characteristics of prior appropriation rights.
Those differences may-render the detalsof impleomenting tribal water
rights in western states--definite quantification and assign ent of a priority
date--less useful in eastem jurisdictions. Coordinati Indian.reserved rights
to water with riparian state-la w systems may be.better accomplished through
some type of apportionment. Tribal water rights can be quantified, whether
as a definite amount or. a percentage of available water or some, other
approach negotiated by the tribe and the state, with the tribal ."share" in the
watercourse apportioned to tribal use. All water not reserved to.tribal rights
would be apportioned to the state-law users, to be'allocated among those
users as the law of the particular state provides.
Coordinating tribal reserved rights and state-law riparian rights is not
without difficulty, but this article suggests ways to minimize the problems
associated with integrating the two types of water rights. The approaches
outlined here preserve for Indian tribes the fundamental principles of their
federal-law rights, while offering feasible means of accommodating the
particular needs of two disparate systems of water rights. Whether Indian
tribes and eastern states adopt these strategies, or arrive at alternative
negotiated agreements tailored to their specific needs, it is imperative that
tribes and states in the East begin to work together to recognize tribal water
rights and integrate them with state-law riparian rights into a coordinated and
workable system...
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